76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 911
House Bill 2080
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor John A. Kitzhaber
for Oregon State Police)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires that certain court orders indicate that person subject
to order is barred from possessing, receiving, shipping or
transporting firearm or firearm ammunition.
A BILL FOR AN ACT
Relating to firearms; amending ORS 161.325, 161.327, 161.370,
426.130 and 427.290.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 161.325, as amended by section 9, chapter 89,
Oregon Laws 2010, is amended to read:
161.325. { - (1) - } { + (1)(a) + } After entry of judgment
of guilty except for insanity, the court shall, on the basis of
the evidence given at the trial or at a separate hearing, if
requested by either party, make an order as provided in ORS
161.327 or 161.329, whichever is appropriate.
{ + (b) The order entered under ORS 161.327 or 161.329 must
indicate that the person found guilty except for insanity of a
crime is barred from possessing, receiving, shipping or
transporting a firearm or firearm ammunition. + }
(2) If the court makes an order as provided in ORS 161.327, it
shall also:
(a) Determine on the record the offense of which the person
otherwise would have been convicted;
(b) State on the record the mental disease or defect on which
the defendant relied for the guilty except for insanity defense;
and
(c) Make specific findings on whether there is a victim of the
crime for which the defendant has been found guilty except for
insanity and, if so, whether the victim wishes to be notified,
under ORS 161.326 (2), of any Psychiatric Security Review Board
hearings and orders concerning the defendant and of any
conditional release, discharge or escape of the defendant.
(3) The court shall include any such findings in its order.
(4) Except under circumstances described in ORS 137.076 (4),
whenever a defendant charged with any offense listed in ORS
137.076 (1) has been found guilty of that offense except for
insanity, the court shall, in any order entered under ORS 161.327
or 161.329, direct the defendant to submit to the obtaining of a
blood or buccal sample in the manner provided in ORS 137.076.
SECTION 2. ORS 161.327 is amended to read:
161.327. (1)(a) Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person would have been
guilty of a felony, or of a misdemeanor during a criminal episode
in the course of which the person caused physical injury or risk
of physical injury to another, the court shall order that a
psychiatric or psychological evaluation be performed and a report
of the evaluation be provided to the court if an evaluation was
not performed or a report was not provided to the court prior to
trial. Upon receipt of the evaluation, the court shall order that
the person be placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment if the court finds
by a preponderance of the evidence that the person is affected by
mental disease or defect and presents a substantial danger to
others requiring commitment to:
(A) A state hospital designated by the Oregon Health Authority
if the person is at least 18 years of age; or
(B) A secure intensive community inpatient facility designated
by the authority if the person is under 18 years of age.
(b) The period of jurisdiction of the board is equal to the
maximum sentence provided by statute for the crime for which the
person was found guilty except for insanity.
(c) When a court orders a psychiatric or psychological
evaluation of a financially eligible person under this
subsection, the court shall order the public defense services
executive director to pay a reasonable fee for the evaluation
from funds available for the purpose.
(2) The court shall determine whether the person should be
committed to a state hospital, or to a secure intensive community
inpatient facility, designated by the authority or conditionally
released pending any hearing before the board as follows:
(a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the court shall order the person committed to a state
hospital designated by the authority if the person is at least 18
years of age, or to a secure intensive community inpatient
facility designated by the authority if the person is under 18
years of age, for custody, care and treatment pending hearing
before the board in accordance with ORS 161.341 to 161.351.
(b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled
with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may
order the person conditionally released, subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
(4) In determining whether a person should be conditionally
released, the court may order evaluations, examinations and
compliance as provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should be committed to a
state hospital or to a secure intensive community inpatient
facility or conditionally released, the court shall have as its
primary concern the protection of society.
(6) Upon placing a person on conditional release, the court
shall notify the board in writing of the court's conditional
release order, the supervisor appointed, and all other conditions
of release, and the person shall be on conditional release
pending hearing before the board in accordance with ORS 161.336
to 161.351. Upon compliance with this subsection and subsections
(1) and (2) of this section, the court's jurisdiction over the
person is terminated and the board assumes jurisdiction over the
person.
(7) An order of the court under this section is a final order
appealable by the person found guilty except for insanity in
accordance with ORS 19.205 (5). Notwithstanding ORS 19.255,
notice of an appeal under this section shall be served and filed
within 90 days after the order appealed from is entered in the
register. The person shall be entitled on appeal to suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case. If the person is financially
eligible, suitable counsel shall be appointed in the manner
provided in ORS 138.500 (1), and the compensation for counsel and
costs and expenses of the person necessary to the appeal shall be
determined and paid as provided in ORS 138.500.
(8) Upon placing a person under the jurisdiction of the board,
the court shall notify the person { + :
(a) + } Of the right to appeal and the right to a hearing
before the board in accordance with ORS 161.336 (7) and 161.341
(4) { + ; and
(b) That the person is barred from possessing, receiving,
shipping or transporting a firearm or firearm ammunition + }.
SECTION 3. ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the finding of the report filed by a psychiatrist or
psychologist under ORS 161.365, the court may make the
determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the
report is received in evidence upon such hearing, the party who
contests the finding thereof shall have the right to summon and
to cross-examine any psychiatrist or psychologist who submitted
the report and to offer evidence upon the issue. Other evidence
regarding the defendant's fitness to proceed may be introduced by
either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended,
except as provided in subsection (12) of this section, and the
court shall commit the defendant to the custody of the
superintendent of a state mental hospital designated by the
Oregon Health Authority if the defendant is at least 18 years of
age, or to the custody of the director of a secure intensive
community inpatient facility designated by the authority if the
defendant is under 18 years of age, or shall release the
defendant on supervision for as long as such unfitness shall
endure. The court may release the defendant on supervision if it
determines that care other than commitment for incapacity to
stand trial would better serve the defendant and the community.
It may place conditions which it deems appropriate on the
release, including the requirement that the defendant regularly
report to the authority or a community mental health program for
examination to determine if the defendant has regained capacity
to stand trial. When the court, on its own motion or upon the
application of the superintendent of the hospital or director of
the secure intensive community inpatient facility in which the
defendant is committed, a person examining the defendant as a
condition of release on supervision, or either party, determines,
after a hearing, if a hearing is requested, that the defendant
has regained fitness to proceed, the proceeding shall be resumed.
If, however, the court is of the view that so much time has
elapsed since the commitment or release of the defendant on
supervision that it would be unjust to resume the criminal
proceeding, the court on motion of either party may dismiss the
charge and may order the defendant to be discharged or cause a
proceeding to be commenced forthwith under ORS 426.070 to 426.170
or 427.235 to 427.290.
(3) The superintendent of a state hospital or director of a
secure intensive community inpatient facility shall cause the
defendant to be evaluated within 60 days from the defendant's
delivery into the superintendent's or director's custody, for the
purpose of determining whether there is a substantial probability
that, in the foreseeable future, the defendant will have the
capacity to stand trial.
(4) In addition, the superintendent or director shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will
never have the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's or director's custody, notify the committing
court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If such a probability exists, the superintendent or
director shall give the court an estimate of the time in which
the defendant, with appropriate treatment, is expected to gain or
regain capacity.
(5) If the superintendent or director determines that there is
a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
superintendent's or director's custody where the defendant shall
receive treatment designed for the purpose of enabling the
defendant to gain or regain capacity. In keeping with the notice
requirement under subsection (4)(b) of this section, the
superintendent or director shall, for the duration of the
defendant's period of commitment, submit a progress report to the
committing court, concerning the defendant's capacity or
incapacity, at least once every 180 days as measured from the
date of the defendant's delivery into the superintendent's or
director's custody.
(6) A defendant who remains committed under subsection (5) of
this section shall be discharged within a period of time that is
reasonable for making a determination concerning whether or not,
and when, the defendant may gain or regain capacity. However,
regardless of the number of charges with which the defendant is
accused, in no event shall the defendant be committed for longer
than whichever of the following, measured from the defendant's
initial custody date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
(7) The superintendent or director shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the superintendent or director is required to
discharge the defendant under subsection (6) of this section.
(8) When the committing court receives a notice from the
superintendent or director under either subsection (4) or (7) of
this section concerning the defendant's progress or lack thereof,
the committing court shall determine after a hearing, if a
hearing is requested, whether the defendant presently has the
capacity to stand trial.
(9) If under subsection (8) of this section the court
determines that the defendant lacks the capacity to stand trial,
the court shall further determine whether there is a substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial and whether the
defendant is entitled to discharge under subsection (6) of this
section. If the court determines that there is no substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial or that the defendant
is entitled to discharge under subsection (6) of this section,
the court shall dismiss, without prejudice, all charges against
the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
(10) All notices required under this section shall be filed
with the clerk of the court and delivered to both the district
attorney and the counsel for the defendant.
(11) If the defendant regains fitness to proceed, the term of
any sentence received by the defendant for conviction of the
crime charged shall be reduced by the amount of time the
defendant was committed under this section to the custody of a
state mental hospital, or to the custody of a secure intensive
community inpatient facility, designated by the Oregon Health
Authority.
(12) The fact that the defendant is unfit to proceed does not
preclude any objection through counsel and without the personal
participation of the defendant on the grounds that the indictment
is insufficient, that the statute of limitations has run, that
double jeopardy principles apply or upon any other ground at the
discretion of the court which the court deems susceptible of fair
determination prior to trial.
{ + (13) If the court enters an order finding the defendant
lacks fitness to proceed under this section, the order must
indicate that the defendant is barred from possessing, receiving,
shipping or transporting a firearm or firearm ammunition. + }
SECTION 4. ORS 426.130 is amended to read:
426.130. (1) After hearing all of the evidence, and reviewing
the findings of the examining persons, the court shall determine
whether the person is mentally ill. If, in the opinion of the
court, the person is:
(a) Not mentally ill, the person shall be discharged forthwith.
(b) Mentally ill based upon clear and convincing evidence, the
court:
(A) Shall order the release of the individual and dismiss the
case if:
(i) The mentally ill person is willing and able to participate
in treatment on a voluntary basis; and
(ii) The court finds that the person will probably do so.
(B) May order conditional release under this subparagraph
subject to the qualifications and requirements under ORS 426.125.
If the court orders conditional release under this subparagraph,
the court shall establish a period of commitment for the
conditional release.
(C) May order commitment of the individual to the Oregon Health
Authority for treatment if, in the opinion of the court,
subparagraph (A) or (B) of this paragraph is not in the best
interest of the mentally ill person. If the court orders
commitment under this subparagraph:
(i) The court shall establish a period of commitment.
(ii) The authority may place the committed person in outpatient
commitment under ORS 426.127.
(D) Shall order that the person be prohibited from
{ - purchasing or possessing a firearm if, in the opinion of
the court, there is a reasonable likelihood - } { + possessing,
receiving, shipping or transporting a firearm or firearm
ammunition if the court finds that + } the person would
constitute a danger to self or others or to the community at
large as a result of the person's mental or psychological state
as demonstrated by past behavior or participation in incidents
involving unlawful violence or threats of unlawful violence, or
by reason of a single incident of extreme, violent, unlawful
conduct. When a court makes an order under this subparagraph, the
court shall cause a copy of the order to be delivered to the
sheriff of the county who will enter the information into the Law
Enforcement Data System.
(2) A court that orders a conditional release or a commitment
under this section shall establish a period of commitment for the
person subject to the order. Any period of commitment ordered for
commitment or conditional release under this section shall be for
a period of time not to exceed 180 days.
(3) If the commitment proceeding was initiated under ORS
426.070 (1)(a) and if the notice included a request under ORS
426.070 (2)(d)(B), the court shall notify the two persons of the
court's determination under subsection (1) of this section.
SECTION 5. ORS 427.290 is amended to read:
427.290. { + (1) + } After hearing all of the evidence, and
reviewing the findings of the investigation and other examiners,
the court shall determine whether the person is mentally retarded
and because of { + the + } mental retardation is either
dangerous to self or others or is unable to provide for the
personal needs of the person and is not receiving care as is
necessary for the health, safety or habilitation of the person.
If in the opinion of the court the person is not mentally
retarded, the person shall be discharged forthwith. If in the
opinion of the court the person is, by clear and convincing
evidence, mentally retarded, the court may order as follows:
{ - (1) - } { + (a) + } If the mentally retarded person can
give informed consent and is willing and able to participate in
treatment and training on a voluntary basis, and the court finds
that the person will do so, the court shall order release of the
person and dismiss the case.
{ - (2) - } { + (b) + } If a relative, { - a - } friend
or legal guardian of the mentally retarded person requests that
the relative, friend or legal guardian be allowed to care for the
mentally retarded person for a period of one year in a place
satisfactory to the judge and shows that the relative, friend or
legal guardian is able to care for the mentally retarded person
and that there are adequate financial resources available for the
care of the mentally retarded person, the court may commit the
mentally retarded person and order that the mentally retarded
person be conditionally released and placed in the care and
custody of the relative, friend or legal guardian. The order may
be revoked and the mentally retarded person committed to the
Department of Human Services for the balance of the year
whenever, in the opinion of the court, it is in the best interest
of the mentally retarded person.
{ - (3) - } { + (c) + } If in the opinion of the court
voluntary treatment and training or conditional release is not in
the best interest of the mentally retarded person, the court may
order the commitment of the person to the department for care,
treatment or training. The commitment shall be for a period not
to exceed one year with provisions for continuing commitment
pursuant to ORS 427.020.
{ - (4) - } { + (d) + } If in the opinion of the court the
mentally retarded person may be incapacitated, the court may
appoint a legal guardian or conservator pursuant to ORS chapter
125. The appointment of a guardian or conservator shall be a
separate order from the order of commitment.
{ + (2) When the court determines that a person is mentally
retarded and enters an order under this section, the order must
indicate that the person is barred from possessing, receiving,
shipping or transporting a firearm or firearm ammunition. + }
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